The Winters Doctrine
As I wrote in a previous post, in 2012 the New Jersey Supreme Court created a serious hurdle for public employees. In the case of Winters v. North Hudson Regional Fire and Rescue, the Supreme Court held that an adjudication by the Civil Service Commission of allegations that a termination was illegal retaliation (even raised tangentially) barred subsequent litigation for violation of New Jersey’s Conscientious Employee Protection Act (known as “CEPA”) based on the same facts in a lawsuit in New Jersey Superior Court. The Appellate Division of New Jersey’s Superior Court subsequently held that such a bar applied to claims of retaliation raised in disciplinary appeals under both CEPA and New Jersey’s Law Against Discrimination (known as the “LAD”).
Extension of the Winters Doctrine in Federal Court
in the case of Bridge v. Fogelson, the United States Court of Appeals for the Third Circuit recently extended the Winters Doctrine to bar a suit in Federal Court for claims of First Amendment retaliation which had previously been raised in New Jersey’s Public Employee Relations Commission (known as “PERC”).
James Bridge was an employee of the North Warren Board of Education and president of the North Warren Education Association (the local teachers union). In response to a motion to remove him as president of the union, Bridge released a chain of emails between him and the vice-president of the local. A vote was taken, Bridge was removed and the vice-president elected as president replaced Bridge. Thereafter the school district conducted two investigations of Bridge’s conduct which resulted in various discipline. Bridge filed various forms of administrative challenges, including one with PERC. In the first challenge, he argued to PERC that he suffered retaliation because of his exercise of his First Amendment free speech rights. PERC ruled against him and he did not appeal. He did, however, file a federal lawsuit alleging violation of his First Amendment rights in the United States District Court for the District of New Jersey.
The judge in the United States District Court for the District of New Jersey (the Federal trial court in New Jersey) dismissed Bridge’s lawsuit on the Federal “abstention” doctrine. Bridge appealed to the Third Circuit. The Third Circuit affirmed the dismissal. However, it did not rely on the abstention doctrine, but instead relied on Winters. The Third Circuit held that because Bridge had his First Amendment claim adjudicated in PERC, he was barred from filing a lawsuit in Federal Court on the same issue. Even though it was an administrative forum, Bridge had the ability to appeal to the Appellate Division. The fact that he chose not to was his, and did not save his rights.
This may, perhaps, be a not unexpected extension of the Winters Doctrine. However, it is significant for several important reasons. First, this decision extends the Winters Doctrine from New Jersey state court to the Federal courts. Second, Winters was a state court case applying New Jersey common law to the adjudication of state statutory rights; the Third Circuit extended this to Federal Court to bar an employee from litigating a dispute over his free speech rights under the United States Constitution.
A Look at Some Prior Law
It should be noted that prior to Winters, the New Jersey Supreme Court had held in 2005 in the case of Hennessey v. Winslow Township that an employee was not barred from raising a discrimination claim under the LAD in Superior Court even though she had expressly raised it in a departmental hearing. In that case, though, the employee had not appealed the decision to the Merit System Board (the predecessor of New Jersey’s current Civil Service Commission). Likewise, in the case of Racanelli v. County of Passaic, the Appellate Division held in 2010 that an employee could raise a CEPA claim in Superior Court even though he had previously lost an appeal to the Civil Service Commission (from which he had not further appealed) because he had not raised the issue of CEPA.
The Takeaway
The Bridge Court’s decision is a significant extension of the Winters Doctrine, and limits public employees’ rights in yet another forum. While these older cases have not been overruled, and are thus still “good law,” in light of the Winters doctrine and the cases that have followed it, an employee should assume that there is a strong probability that if she appeals a governmental employment decision in an administrative forum, such as the Civil Service Commission, the Department of Education, PERC, or anywhere else, that any subsequent lawsuit will be barred in New Jersey’s state and federal courts. In other words, an employee needs to pick the forum where she wants to seek relief, and she will be stuck with its decision regardless of the outcome.
Contact Us
McLaughlin & Nardi’s New Jersey employment attorneys represent New Jersey government employees in civil service appeals lawsuits, tenure hearings. Call us at (973) 890-0004 or email us to set up a consultation.